Employee or Contractor? A new case stresses the “right to control”

Workers these days are protected by many laws. Some employers resent that. They would like to operate without being bothered by all those pesky requirements that they pay workers overtime, give them rest breaks, that sort of thing. So, they would like to deal with “independent contractors” instead of employees. But, then, they find themselves faced with another problem: lack of CONTROL. Employers are control freaks. They can’t help themselves. The result is sometimes a ludicrous situation in which the employer “classifies” a worker as a “contractor”, but insists on the right to dictate when the worker can go to the bathroom. I’ve written a legal guide about that. Here is a link:  A new case from the Ninth Circuit Court of Appeals, applying California law to a federal case, illustrates this syndrome. A company called Affinity needed truck drivers. But it didn’t want to pay them sick leave, or vacation holiday or severance wages. They didn’t want to pay for the drivers to be covered by workers compensation. So, they came up with the idea of having the drivers sign an agreement when they were hired on. The agreement is very clear: it says the drivers are contractors, not employees. They even required the drivers to obtain business licenses, and to have commercial checking accounts. OK.  Affinity, it seemed, wanted drivers to be contractors, not employees. But it just could not give up CONTROL! Affinity wanted to schedule the drivers day by day. Drivers had to request time off, weeks in advance. Drivers needed trucks. Usually, a contractor has its own truck. But, the drivers were “encouraged” to lease their trucks from Affinity. Contractors usually paint their trucks with their own trade dress (for branding purposes). Nope. Affinity required the trucks to have a Sears logo on the otherwise white truck. Affinity dictated exactly how the trucks would be outfitted with accessories like packing material and tools. Drivers had to report every day to Affinity’s facility, and report to a “supervisor” (here’s a hint: “contractors” don’t have “supervisors”). Drivers were required to attend 30 minute “stand up” meetings every day. Drivers were required to wear uniforms, and groom themselves as Affinity dictated (no tattoos or piercings could show, and let’s keep those beards neatly trimmed!). It went on and on. Affinity wanted to be in control of the physical details of the work of their “contractors”. Affinity had it both ways pretty successfully. It even won a trial in the district court. But, the Ninth Circuit reversed the district court judge, and remanded the case with instructions to the district court that the drivers were employees within the meaning of California law. So, now, Affinity will be exposed to a lot of liability; because they just could not give up CONTROL.

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